R v Lam
[2008] VSCA 71
•1 May 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 389 of 2005
| THE QUEEN |
| v |
| CUONG QUOC LAM |
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APPLICATION TO AMEND GROUNDS
OF APPLICATION FOR LEAVE TO APPEAL
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JUDGES: | BUCHANAN, VINCENT and KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 April 2008 | |
DATE OF JUDGMENT: | 1 May 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 71 | |
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Criminal law – Practice and procedure – Order for the production of documents pursuant to s 574(a) of the Crimes Act 1958 (Vic) – Fishing expedition.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan S.C. with Mr D A Trapnell | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr P F Tehan QC with Ms F L Dalziel | Michael J Gleeson & Assocs |
| For the Juries Commissioner | Mr D Masel | Victorian Government Solicitor |
BUCHANAN JA:
After a trial in the Supreme Court, which commenced on 24 January 2005 and concluded on 19 September 2005, a jury found the applicant guilty on three counts of murder. Six other persons were also found guilty on counts of murder involving one or more of the same victims.
The applicant and his co-offenders have sought leave to appeal against their convictions. The applications are listed to be heard on 12 May 2008.
The applicant has applied to amend the grounds of his application by adding the following ground:
The trial of the applicant miscarried because the empanelment of the jury was a nullity.
It appears from an affidavit sworn by the applicant’s solicitor that the ground arises from a suspicion formed by the applicant’s legal representatives that the Juries Commissioner (‘the Commissioner’) or one of his subordinates excused persons from the jury pool after hearing and ruling upon claims by potential members of the pool that they would suffer hardship if chosen as jurors for a lengthy trial. Counsel for the applicant wishes ultimately to submit that the Commissioner had no power to excuse persons from the jury pool and thus his actions caused the trial to miscarry.
The suspicion is based upon the legal representatives’ recollection that there were few members of the jury pool who sought to be excused by the trial judge,[1] and the fact that in early 2007 the Commissioner informed counsel in a trial listed to be heard before Coldrey J that the Commissioner or a jury pool supervisor had excluded persons from the jury pool after hearing claims that those persons could not make themselves available for a trial expected to last eight weeks.[2] It is thought that a like practice may have been in place in 2005 and was followed in selecting persons to form the pool from which the jury that tried the applicant was chosen.
[1]Although it now appears that some 37 persons were excused by the trial judge.
[2]See R v Cavkic, Athanasi and Clarke (2007) 14 VR 389.
In an attempt to prove the facts upon which the new ground is based, the applicant has applied for an order pursuant to s 574 of the Crimes Act 1958 that the Commissioner produce:
Any document recording the taking of excuses of members of the pool from which the panel in the applicant’s trial was formed.
Section 574(a) of the Act provides:
For the purposes of this Act the Court of Appeal may if it thinks necessary or expedient in the interest of justice –
(a)order the production of any document exhibit or other thing connected with the proceedings the production of which appears to it necessary for the determination of the case …
Counsel for the applicant frankly acknowledged that he was unable to identify a particular document, contending that, if the Commissioner did cull the jury pool, in a well ordered bureaucracy there was bound to be a record of the culling. In effect, the applicant seeks discovery limited to a particular class of documents.
The application is founded upon surmise: surmise that the Commissioner did winnow the jury pool of persons who were not available for a long trial and surmise that there is a document recording such a procedure. In the light of the only known facts, I doubt that this speculation is soundly based.
In any event, in my opinion s 574 of the Act does not authorise such a fishing expedition. The words in s 574(a), ‘document exhibit or other thing’ connote identifiable objects. The section contemplates the production of documents in a manner analogous to the procedure of subpoena rather than discovery.[3] In R v Floyd[4] the Court of Appeal refused an application pursuant to s 574(b) for an order that a person be examined, saying:
Whilst the powers of the Court are necessarily concerned with insuring that miscarriages of justice are rectified, s 574 does not, we think, go so far as to embrace an application such as this, which is, as is conceded, an application for a “fishing expedition” based upon speculative material coming into the possession of the applicant and his legal advisors more than a year ago. The purpose of s 574 is to enable the Court, if it thinks necessary and expedient in the interests of justice, to entertain on an appeal credible evidence not available at trial which appears to it to be cogent, in the sense that, if it had been available, the verdict might well have been a different one.
[3]R v Gillard [1999] SASC 554, which arose under a provision akin to s 574, is an example of the exercise of power to order production of particular, identified documents.
[4][2001] VSCA 124.
Further, I doubt the correctness of the proposition that the Commissioner had no power to exclude from the jury pool those who were not available for a lengthy trial. The Juries Act 2000 contemplates that the Commissioner controls the creation of jury pools. The Court controls the selection of jurors from the pool.
Section 17 of the Act provides that the Commissioner may defer or cancel the jury service of those summoned to attend for jury service if it appears to the Commissioner that the number summoned is greater than the number that will actually be required. Similarly, if it appears that the number of persons attending for jury service at any sittings of the Court exceeds the number reasonably required, the Commissioner or the Court may defer or cancel the jury service of all or a selected number of those persons. Regulation 8(3) of the Juries Regulations 2001 provides:
(3)Subject to any direction that may be given to the pool supervisor by a judge, any question of priority in the selection and allocation of persons for the purpose of constituting panels must be determined by the pool supervisor.
Section 8 of the Juries Act provides that the Commissioner may excuse a person from jury service for the whole or any part of the jury service period if satisfied that there is good reason for doing so. Paragraph (e) of sub s (2) provides that good reason includes ‘substantial hardship to the person would result from the person attending for jury service’. It is common ground between the parties that the trial of the applicant and those alleged to be his co-offenders was the only trial listed to commence on the day the jury pool was formed. Accordingly, it may be that the Commissioner could properly excuse persons from jury service with respect to this trial pursuant to s 8(3)(e) by excusing them for part of the jury service period.
Counsel for the applicant relied upon the decision of Coldrey J in R v Cavkic, Athanasi and Clarke. In that case his Honour held that the Commissioner was not entitled pursuant to s 8 of the Juries Act to excuse from the jury pool persons who claimed that they could not participate in a lengthy trial, for the section was limited to excusing potential jurors for the whole or part of the jury service period, not participation in a particular trial. The position may be otherwise where, for an identifiable part of the jury service period, the members of the pool are eligible for service as jurors in only one trial.
For the foregoing reasons, I would refuse the application.
VINCENT JA:
I agree, and I do so for the reasons advanced by the presiding judge.
KELLAM JA:
For the reasons stated by the learned presiding judge, I also agree that the application should be refused.
BUCHANAN JA:
The order of the Court is that the application is dismissed.
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